Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about March 4, 2009, which, to the extent appealed from, denied the motion of defendants-appellants Volvo Cars of North America, LLC, Volvo Car Corporation and Ford Motor Company for summary judgment dismissing the complaint, modified, on the law, plaintiffs' failure to warn claims dismissed, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

McGuire, J.P., Renwick, Richter, Manzanet-Daniels, JJ.

108539/04

On May 24, 2002, plaintiff Manuel Reis arrived at the home of Americo Silva and observed Silva near a 1987 Volvo station wagon. Silva asked Reis if he wanted to see the engine running and Reis said "yes." Reis stood in front of the vehicle with the hood open. Silva, who was beside the car, reached into the driver's side open window and turned the ignition key while the manual transmission was in first gear. Though Silva did not apply the clutch pedal, he recalled that the parking brake was "on."*fn1 When the car started, it lurched forward and crushed Reis's left leg. The vehicle was not equipped with a starter interlock, a device that prevents a manual transmission automobile from starting if it is in gear and the clutch pedal is not depressed. Plaintiffs brought claims against defendants-appellants sounding in strict liability and negligence alleging a design defect and failure to warn.

Summary judgment was properly denied on the design defect claims. In support of their motion, defendants-appellants failed to submit an affidavit from an engineer or automotive expert attesting to the vehicle's safety. Instead, they merely presented evidence that they had not received any prior complaints about injuries or damage due to the lack of a starter interlock, and that, from the date Silva's Volvo was manufactured up until the date of the accident, there existed no statutes or regulations requiring the use of starter interlocks on manual transmission vehicles.

Regardless of whether this sparse evidence satisfies defendants-appellants' prima facie burden in moving for summary judgment, the affidavit of plaintiffs' expert raised a triable issue of fact as to whether, in the absence of a starter interlock, the vehicle was "not reasonably safe" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]). Plaintiffs' expert, Thomas J. Feaheny, is an automotive engineering consultant and former vice president for vehicle research at Ford Motor Company. He was instrumental in Ford's decision to begin installing starter interlock devices in their manual transmission vehicles. Feaheny explained that starter interlocks were included in Ford and Chevrolet manual transmission automobiles as early as the 1970s and were widely used by U.S. and foreign automobile makers in 1987, when Silva's Volvo was manufactured.*fn2

Feaheny stated that a starter interlock could have easily and inexpensively been installed on the subject automobile and that a manual transmission vehicle without such a device is unreasonably dangerous. He concluded that if a starter interlock had been installed on Silva's Volvo, the instant accident would most likely not have occurred. Contrary to defendants-appellants' position, the expert's failure to employ the phrase "reasonable degree of scientific certainty" does not render his affidavit invalid as a matter of law (see John v City of New York, 235 AD2d 210 [1997]).

Whether Silva's method of starting the car by turning the key while he was beside the vehicle was a reasonably foreseeable use of the automobile is a question for the trier of fact. "A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose" (Lugo v LJN Toys, Ltd., 75 NY2d 850, 852 [1990]). Defendants-appellants presented no evidence, expert or otherwise, showing that Silva's method of starting the vehicle, even if an unintended use, was not a foreseeable one. A jury could reasonably conclude that it was foreseeable that a car owner might turn on the ignition while standing outside the car, especially if someone else was examining the engine, and that this act was not the sole or superseding cause of the accident (see Valentin v Bretting, Mfg., Co., 278 AD2d 230 [2000]).

The failure to warn claims should have been dismissed because there is no evidence that any such failure was a proximate cause of the injury. In Sosna v American Home Prods. (298 AD2d 158 [2002]), this Court held that a plaintiff asserting a failure to warn claim must adduce proof "that the user of the product would have read and heeded a warning had one been given" (298 AD2d at 158). Here, there is no proof in the record that Silva would have read and heeded a warning about the risk of the car's lurching forward if it is started while in gear and without depressing the clutch pedal. To the contrary, Silva testified at his deposition that an owner's manual came with the vehicle, but he did not need to read it because he understood how cars operated. Thus, any purported absence of a warning in the owner's manual was not a substantial factor in bringing about the injury (see Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]).

The dissent does not address this Court's decisions in Sosna and Guadalupe, but instead relies on a number of cases which we find distinguishable. For example, in Johnson v Johnson Chem. Co. (183 AD2d 64 [1992]), although the plaintiff admitted that she did not read the warning label on a can of insecticide, the Second Department affirmed denial of the manufacturer's motion for summary judgment focusing on the fact that the warning may not have been prominently displayed. Likewise, the other cases cited by the dissent (see e.g. Humphrey v Diamant Boart, Inc., 556 F Supp2d 167 [ED NY 2008]) all involve questions of fact as to the conspicuousness, prominence and/or placement of the warnings.

Here, however, it is immaterial how prominent or conspicuous any warning in the owner's manual might have been because it is undisputed that Silva did not read the manual and would not have been likely to read it because he was familiar with how cars operated. Silva's admission that he did not read the manual severs the causal connection between the alleged failure to warn and the accident (see Sosna, 298 AD2d at 158, Guadalupe, 253 AD2d at 378).

Plaintiffs' suggestion on appeal that a warning label should have been placed on the dashboard or gear shift, and that such a warning would have prevented the accident, is based on speculation. The complaint does not contain any allegation that a warning should have been in the vehicle itself. Nor does the deposition testimony, or plaintiff's expert affidavit, support such a claim or even explain where such a warning label should have been. Plaintiffs also point to no evidence in the record that other potential vehicle safety hazards are typically warned against by the use of interior labeling as opposed to the inclusion of such information in the owner's manual. Moreover, there is no evidence that Silva would have read and heeded a warning if it had been located in the car itself. Since Silva started the car from outside, it is hard to imagine how a warning on the dashboard or gear shift would have prevented the accident. Defendant-appellant Ford was not entitled to summary judgment because while it did show that it had no role in the design and manufacture ...

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